United States v. Cress No 84 United States v. Achilles Kelly No 718, Nos. 84 and 718

CourtUnited States Supreme Court
Writing for the CourtPitney
PartiesUNITED STATES, Plff. in Err., v. W. R. CRESS. NO 84. UNITED STATES, Plff. in Err., v. ACHILLES KELLY, Green B. Kelly, Jr., Lillian Kelly Crawford, et al. NO 718
Docket NumberNos. 84 and 718
Decision Date12 March 1917

243 U.S. 316
37 S.Ct. 380
61 L.Ed. 746
UNITED STATES, Plff. in Err.,

v.

W. R. CRESS. NO 84. UNITED STATES, Plff. in Err., v. ACHILLES KELLY, Green B. Kelly, Jr., Lillian Kelly Crawford, et al. NO 718.

Nos. 84 and 718.
Argued December 13, 1916.
Decided March 12, 1917.

Page 317

Assistant Attorney General Thompson and Messrs. P. M. Cox and Seth Shepard, Jr., for plaintiff in error in No. 84.

Assistant Attorney General Thompson for plaintiff in error in No. 718.

No brief was filed for defendant in error in No. 84.

Mr. J. F. Winn for defendant in error in No. 718.

Mr. Justice Pitney delivered the opinion of the court:

These cases were argued together, involved similar questions, and may be disposed of in a single opinion. They were actions brought in the district court by the respective defendants in error against the United States under

Page 318

the 20th paragraph of § 24, Judicial Code (Act of March 3, 1911, chap. 231, 36 Stat. at L. 1087, 1093, Comp. Stat. 1913, §§ 968, 991(20)), to recover compensation for the taking of lands and water rights by means of backwater resulting from the construction and maintenance by the government of certain locks and dams upon the Cumberland and Kentucky rivers, respectively, in the state of Kentucky, in aid of the navigation upon those rivers.

In No. 84 the findings of the district court are, in substance, that at the time of the erection of lock and dam No. 21 in the Cumberland river, the plaintiff was the owner of 189 acres of land on Whiteoak creek, a tributary of the Cumberland, not far distant from the river; that by reason of the erection of the lock and dam 6 6/10 acres of this land are subject to frequent overflows of water from the river, so as to depreciate it one half of its value, and a ford across Whiteoak creek and a part of a pass way are destroyed; that the 6 6/10 acres were worth $990, and the damage thereto was $495; that the damage to the land by the destruction of the ford was $500; and that plaintiff was entitled to recover the sum of $995. It may be supposed that Whiteoak creek was not a navigable stream, but there is no finding on the subject.

In No. 718 the findings are to the effect that at the time of the erection by the government of lock and dam No. 12 in the Kentucky river the plaintiffs, together with another person who was joined as a defendant, were the owners and in possession of a tract of land situate on Miller's creek, a branch of the Kentucky, containing 5 1/2 acres, upon which there were a mill and a mill seat; that by reason of the erection of the lock and dam the mill no longer can be driven by water power; that the water above the lock and dam, when it is at pool stage, is about 1 foot below the crest of the milldam, and this prevents the drop in the current that is necessary to run

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the mill; that no part of the land or mill is overflowed or covered by pool stage of water, nor is the mill physically damaged thereby; that Miller's creek is not a navigable stream; that the damages sustained by the owners of the mill, representing depreciation of the value of the mill property by cutting off the water power, amount to $1,500.

Judgments were entered in favor of the respective landowners for the sums mentioned in the findings, together with interest and the costs of the suits, and the United States appealed to this court.

(1) A fundamental contention made in behalf of the government, and one that applies to both cases, is that the control by Congress, and the Secretary of War acting for it, over the navigation of the Cumberland and Kentucky rivers, must also include control of their tributaries, and that, in order to improve navigation at the places mentioned in the findings, it was necessary to erect dams and back up the water, and the right to do this must include also the right to raise the water in the tributary streams.

In passing upon this contention we may assume, without, however, deciding, that the rights of defendants in error are no greater than if they had been riparian owners upon the rivers, instead of upon the tributary creeks.

The states have authority to establish for themselves such rules of property as they may deem expedient with respect to the streams of water within their borders, both navigable and non-navigable, and the ownership of the lands forming their beds and banks (Barney v. Keokuk, 94 U. S. 324, 338, 24 L. ed. 224, 228; Packer v. Bird, 137 U. S. 661, 671, 34 L. ed. 819, 821, 11 Sup. Ct. Rep. 210; Hardin v. Jordan, 140 U. S. 371, 382, 35 L. ed. 428, 433, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U. S. 1, 40, 58, 38 L. ed. 331, 346, 352, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. Water Comrs. 168 U. S. 349, 358, 42 L. ed. 497, 501, 18 Sup. Ct. Rep. 157), subject however, in the case of navigable streams, to the paramount authority of Congress to control the navigation so far as may be necessary for the regulation of commerce

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among the states and with foreign nations (Shively v. Bowlby, 152 U. S. 1, 40, 38 L. ed. 331, 346, 14 Sup. Ct. Rep. 548; Gibson v. United States, 166 U. S. 269, 272, 41 L. ed. 996, 1000, 17 Sup. Ct. Rep. 578; Scott v. Lattig, 227 U. S. 229, 243, 57 L. ed. 490, 496, 44 L.R.A.(N.S.) 107, 33 Sup. Ct. Rep. 242); the exercise of this authority being subject, in its turn, to the inhibition of the 5th Amendment against the taking of private property for public use without just compensation (Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 465, 471, 47 L. ed. 539, 546, 549, 23 Sup. Ct. Rep. 349.

The state of Kentucky, like most of the states of the Union, determines the navigability of her streams, so far as the public right is concerned, not by the common-law test of the ebb and flow of the tide,—manifestly inapplicable in a state so wholly remote from the sea,—but by the test of navigability in fact (Thurman v. Morrison, 14 B. Mon. 367; Morrison v. Thurman, 17 B. Mon. 249, 66 Am. Dec. 153; Goodin v. Kentucky Lumber Co. 90 Ky. 625, 14 S. W. 775; Murray v. Preston, 106 Ky. 561, 564, 90 Am. St. Rep. 232, 50 S. W. 1095; Banks v. Frazier, 111 Ky. 909, 912, 64 S. W. 983; Ireland v. Bowman, 130 Ky. 153, 161, 113 S. W. 56, 17 Ann. Cas. 786), while sustaining private ownership of the beds of her streams, both navigable and non-navigable, according to the common-law rule (Berry v. Snyder, 3 Bush, 266, 273, 277, 96 Am. Dec. 219; Miller v. Hepburn, 8 Bush, 326, 331; Williamsburg Boom Co. v. Smith, 84 Ky. 372, 374, 1 S. W. 765; Wilson v. Watson, 141 Ky. 324, 327, 35 L.R.A.(N.S.) 227, 132 S. W. 563; Robinson v. Wells, 142 Ky. 800, 804, 135 S. W. 317), with incidental rights to flow of the stream in its natural state (Anderson v. Cincinnati Southern R. Co. 86 Ky. 44, 48, 9 Am. St. Rep. 263, 5 S. W. 49).

The general rule that private ownership of property in the beds and waters of navigable streams is subject to the exercise of the public right of navigation, and the governmental control and regulation necessary to give effect to that right, is so fully established, and is so amply illustrated by recent decisions of this court, that a mere reference to the cases will suffice. Scranton v. Wheeler,

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179 U. S. 141, 163, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; Philadelphia Co. v. Stimson, 223 U. S. 605, 634, 56 L. ed. 570, 582, 32 Sup. Ct. Rep. 340; United States v. Chandler-Dunbar Water Power Co. 229 U. S. 53, 62, 57 L. ed. 1063, 1075, 33 Sup. Ct. Rep. 667; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 85, 88, 57 L. ed. 1083-1085, 33 Sup. Ct. Rep. 679, Ann. Cas. 1915A, 232; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251, 268, 59 L. ed. 939, 947, 35 Sup. Ct. Rep. 551; Willink v. United States, 240 U. S. 572, 580, 60 L. ed. 808, 810, 36 Sup. Ct. Rep. 422.

But this rule, like every other, has its limits, and in the present cases, which require us to ascertain the dividing line between public and private right, it is important to inquire what are 'navigable streams' within the meaning of the rule.

In Kentucky, and in other states that have rejected the common-law test of tidal flow and adopted the test of navigability in fact, while recognizing private ownership of the beds of navigable streams, numerous cases have arisen where it has been necessary to draw the line between public and private right in waters alleged to be navigable; and by an unbroken current of authorities it has become well established that the test of navigability in fact is to be applied to the stream in its natural condition, not as artificially raised by dams or similar structures; that the public right is to be measured by the capacity of the stream for valuable public use in its natural condition; that riparian owners have a right to the enjoyment of the natural flow without burden or hindrance imposed by artificial means, and no public easement beyond the natural one can arise without grant or dedication save by condemnation, with appropriate compensation for the private right. Cases exemplifying these propositions are cited in a marginal note.1 We have found no case to the

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contrary. An apparent but not a real exception is the New York case of Canal Appraisers v. People (1836) 17 Wend. 571, where the decision was rested (pp. 609, 612, 624) upon the ground that the bed of the Mohawk river was the property of the state; the authority of the case having been limited accordingly by later decisions of the court of last resort of that state. Canal Fund Comrs. v. Kempshall, 26 Wend. 404, 416; Child v. Starr, 4 Hill, 369, 372; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44, 63; Smith v. Rochester, 92 N. Y. 463, 482, 44 Am. Dec. 393; Fulton Light, Heat, & P. Co. v. State, 200 N. Y. 400, 413, 37 L.R.A.(N.S.) 307, 94 N. E. 199.

Many state courts, including the court of appeals of Kentucky, have held, also, that the...

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  • Kaiser Aetna v. United States, No. 78-738
    • United States
    • United States Supreme Court
    • December 4, 1979
    ...flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917). Thus, in United States v. Chandler-Dunbar Co., supra, 229 U.S., at 69, 33 S.Ct., at 674, this Court sta......
  • State Highway Commission v. Knight, 31160
    • United States
    • Mississippi Supreme Court
    • April 9, 1934
    ...the following cases: Rainey v. Hinds County, 78 Miss. 308, 28 So. 875; Covington Co. v. Watts, 120 Miss. 428, 82 So. 309; U. S. v. Cress, 243 U.S. 316; U. S. v. Grizzard, 219 U.S. 180. The Supreme Court has set at rest the liability of a county in cases like the one at bar. Covington County......
  • Rank v. Krug, Civ. No. 685-ND
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    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 13, 1950
    ...Wall. 166, 20 L.Ed. 557; Williams v. U. S., C.C. 1903, 104 F. 50 affirmed 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554; U. S. v. Cress, 1917, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; U. S. v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; U. S. v. Chandler-Dunbar Water Power Co.,......
  • United States v. Crary
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    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • October 24, 1932
    ...48 L. Ed. 211; U. S. v. Grizzard, 219 U. S. 180, 183, 184, 185, 31 S. Ct. 162, 55 L. Ed. 165, 31 L. R. A. (N. S.) 1135; U. S. v. Cress, 243 U. S. 316, 329, 37 S. Ct. 380, 61 L. Ed. 746; U. S. v. Wayne County (mem.), 252 U. S. 574, 575, 40 S. Ct. 394, 64 L. Ed. No federal statute gives to a ......
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301 cases
  • Kaiser Aetna v. United States, No. 78-738
    • United States
    • United States Supreme Court
    • December 4, 1979
    ...flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917). Thus, in United States v. Chandler-Dunbar Co., supra, 229 U.S., at 69, 33 S.Ct., at 674, this Court sta......
  • State Highway Commission v. Knight, 31160
    • United States
    • Mississippi Supreme Court
    • April 9, 1934
    ...the following cases: Rainey v. Hinds County, 78 Miss. 308, 28 So. 875; Covington Co. v. Watts, 120 Miss. 428, 82 So. 309; U. S. v. Cress, 243 U.S. 316; U. S. v. Grizzard, 219 U.S. 180. The Supreme Court has set at rest the liability of a county in cases like the one at bar. Covington County......
  • Rank v. Krug, Civ. No. 685-ND
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    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 13, 1950
    ...Wall. 166, 20 L.Ed. 557; Williams v. U. S., C.C. 1903, 104 F. 50 affirmed 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554; U. S. v. Cress, 1917, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; U. S. v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; U. S. v. Chandler-Dunbar Water Power Co.,......
  • United States v. Crary
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • October 24, 1932
    ...48 L. Ed. 211; U. S. v. Grizzard, 219 U. S. 180, 183, 184, 185, 31 S. Ct. 162, 55 L. Ed. 165, 31 L. R. A. (N. S.) 1135; U. S. v. Cress, 243 U. S. 316, 329, 37 S. Ct. 380, 61 L. Ed. 746; U. S. v. Wayne County (mem.), 252 U. S. 574, 575, 40 S. Ct. 394, 64 L. Ed. No federal statute gives to a ......
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  • But Flooding Is Different: Takings Liability for Flooding in the Era of Climate Change
    • United States
    • Environmental Law Reporter Nbr. 50-11, November 2020
    • November 1, 2020
    ...her claim in tort did not bar her inverse condemnation claim because “the facts established 81. Id . at 181. 82. United States v. Cress, 243 U.S. 316, 328 (1917). 83. Id . at 318. 84. Id . at 328. 85. A review of the history surrounding takings and tort jurisprudence is outside of the scope......
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    ...12. See, e.g. , Pumpelly v. Green Bay Co., 13 Wall. 166 (1872); United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S. 316 (1917); United States v. Dickinson, 331 U.S. 745 (1947); United States v. Kansas City Life Ins. Co., 339 U.S. 799 (1950). 13. Arkansas Game & Fis......

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